This invention relates to document access control systems, and more particularly to the control of access to documents produced during the course of litigation.
One of the defining features of litigation in this country is the opening up of a party's files to the scrutiny of the opposing party or parties. Soon after the commencement of a lawsuit, a party will often serve upon the other(s) a Request to Produce Documents. Typically, that Request calls for literally tens or hundreds of thousands, and even millions, of documents. A good part of the ensuing litigation revolves around deciding which documents should be produced, stamping them with "Bates number" identifications, redacting parts of documents as being irrelevant or privileged, stamping selected documents with "confidential" legends, preparing privileged logs (lists of documents which are being withheld on the grounds of attorney-client privilege or work product immunity), reviewing produced documents, filing motions concerning the propriety of withholding or redacting documents, etc. Teams of legal assistants and attorneys are assigned to these various tasks. It is commonly accepted that one of the main reasons for the high cost of litigation in the United States has to do with document production.
One way to cut down on the cost of document handling is to produce documents on optical disks. The producing party furnishes to opposing counsel not copies of actual documents, but rather optical disks on which the document images have been stored. The documents are then accessed using an optical disk player. A retrieved document can be viewed on a monitor, and a copy can be printed if desired. One of the biggest advantages of document production on optical disks (besides the savings in rent since it is no longer necessary to allocate a "war room" to the storage of produced paper) is that an associated document database can be developed. A database record can be generated for each page stored on a disk. (As used herein, a "document" can be a single page or a group of related pages. A "page" is a single piece of paper.) The fields of each record can include author, date, addressee, recipients of copies, subject matter, names mentioned, etc. When reviewed by legal assistants or attorneys, individual pages can be annotated and indexed. It is even possible to employ optical character recognition (OCR) techniques so that each page is automatically scanned, and to develop an associated index. With an index, for example, there can be displayed successive images of pages all of which mention a particular person by name, even before analyzing the stored images, and documents dealing with the same subject matter can be linked and viewed simultaneously. The integration of optical disk technology and database management systems, especially in high profile cases, is becoming more common. Service organizations are being established to image the documents and provide turnkey systems for attorney use of the resulting disk images.
One major concern with imaging systems used in document production is that of controlling access to "restricted" documents. Documents can be restricted on two different grounds. The first pertains to redactions. There are many documents which the producing party partially redacts. For example, the same document may pertain not only to the subject matter of the particular lawsuit involved, but also to totally unrelated matters, and should the producing party not desire to turn over information which is not responsive to a document request, it is necessary to mask the irrelevant parts of the document. Similarly, privileged parts of a document may be redacted. Redactions are easily accomplished during the imaging process--blocks of text or other material can be located on a page and replaced by a blank image during the scanning process. But there are two problems with this. First, the producing party generally wants to have an image of the complete, unredacted page, even though the opposing party is given a redacted image; it necessarily complicates the disk-making process if two different sets of disks have to be made, not to mention that producing counsel certainly want to have a record of the redacted image they produced as well as the original. A bigger problem, however, has to do with an eventual Order of a Judge, Magistrate Judge, special master, etc. that a redacted document must be produced in its original form. If all document production is to be done by way of disks, this means that new disks have to be made. Alternatively, paper copies of the original documents can be provided, but they can no longer be integrated in the same database which applies to the documents on disk.
The second document restriction has to do with confidentality. Very often, a Protective Order is entered into before the start of document production. Under the terms of a typical Order, documents may be marked as confidential, in which case they are not to be shown by receiving counsel to their client. There are even times when there are two levels of confidentiality. For example, a first-level confidential document may be shown to retained experts and consultants, but not the party, while a second-level of "counsel only" confidential documents may not be shown even to the experts. For different "team" members on the same side to be able to work together, they should be able to use copies of the same optical disks, yet there is an obvious roadblock when there are two or three different subsets of documents to which different classes of reviewers are to have access.
What further complicates the confidentiality aspect is that it is routine during the initial stages of litigation to mark many documents as confidential even though they are not. Upon the request of receiving counsel, counsel for the producing party will often acknowledge that a document previously marked as confidential is not, or that a document previously marked as highly confidential is only lowly confidential (i.e., it may be shown to a larger class of people). The question is how documents with different levels of security can all be placed on the same disk or set of disks while selectively restricting access to those documents and, more significantly, how to change permitted access to individual documents in response to attorney agreement or a Court Order.